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Constructive Possession of controlled substances in Florida

Posted by Larry Avallone | Sep 04, 2020 | 0 Comments

In the State of Florida, you can be charged with drug possession without physically possessing the illegal substance. The definition of constructive possession is complicated and determining constructive possession in a Florida criminal court can be confusing for all parties involved. If you or someone you know is facing a constructive possession charge, keep reading to learn more about this concept and the best way to face a constructive possession charge. 

What is constructive possession?

You have never seen or touched an illegal substance before, but you are still charged with drug possession. How can this be possible? In the state of Florida, an individual can be arrested for drug possession without having illegal substances in their physical possession. Constructive possession seems confusing, especially if you find yourself in this unexpected circumstance. It is the goal of this article to help you understand what constructive possession is, how it is established in court, and the potential punishment. 

This type of drug possession was created to deal with charges where an individual does not have an illegal substance on their person but still has possession of the drugs. Some believe that by not having illegal substances in your possession, you can avoid drug possession charges. With constructive possession, that is not the case.

Constructive possession vs. actual possession

Actual possession is probably the better-known drug possession concept. If a police officer finds illegal drugs somewhere on your body, including your pockets, socks, or in your hand, you can be charged with actual possession. Individuals charged with actual possession are believed to have direct physical control over the drugs. Essentially, actual possession comes down to carrying illegal drugs directly on your person. 

Constructive possession is slightly more complicated because you do not have to be in physical possession of the drugs. Instead, an individual can be charged with constructive possession if an officer suspects that the person has knowledge of the drugs and knows where they are. 

Common examples of constructive possession include drugs found in a person's car, home, or boat. A driver can be arrested if drugs are found in their vehicle, even if they claim to have no prior knowledge of the substances. An individual could potentially be arrested for constructive possession if they are visiting a friend who happens to be arrested with drugs in their home. In both situations, the individual is believed to have knowledge of the drugs, control over them, and access to the drugs. Proof of knowledge of the presence and illicit nature of the substance is critical. More on that later. 

Punishment for constructive possession

Both actual possession and constructive possession of drugs carry serious consequences. In Florida, a conviction of either type of drug possession can result in jail time, heavy fines, and a criminal record. All drug possession charges in Florida are a felony, except for possession of cannabis under 20 grams. 

While one might think that actual possession of drugs might carry heavier consequences, that is not the case. The punishment for constructive possession is the same as actual possession. Possession of controlled substances can result in incarceration if an individual is found guilty. Ultimately, the jurisdiction, type of substance, and amount of substance factor into the consequences of a drug charge. 

How is constructive possession proved in court?

The burden of proof resides with the state when it comes to constructive possession charges. Prosecutors must meet three requirements to prove constructive possession in a Florida criminal court. The State of Florida must show:

  • That the individual had knowledge of the drugs.
  • The individual knew the drugs were illegal in nature.
  • The person had control over the substances. 

Knowledge of the drugs

It is up to the prosecutor to prove that an individual knew that the drugs were present. The individual must be aware that drugs were in the vehicle, house, boat, etc. The accused must also know that those substances were illegal. Both components of knowledge must be present to prove constructive possession. 

The prosecution must prove, beyond a reasonable doubt, that a defendant knew about the illegal substances. If the defendant did not know about the drugs or their illegal nature, they cannot be guilty of constructive possession. 

Control over the drugs 

Prosecutors must also prove that an individual had the ability to maintain control and dominion over an illegal substance. This means that the person was able to control where the substances were, have access to where they were held, and had the ability to gain possession of the drugs. For example, drugs may be in a locker that you have the key to or a safe that you can access. 

If the person accused did not have the ability to control or access the drugs, they cannot be found in constructive possession of the substances. 

Is proximity enough to prove constructive possession?

Proximity to illegal substances alone is not sufficient to prove constructive possession. In Florida, it is not enough to simply be close to the drugs to be charged with drug possession. Concrete evidence is needed to show that an individual knew the drugs were in a specific location, knew the drugs were illegal, and were in control of the substances. Proximity alone does not provide enough evidence to prove these elements beyond a reasonable doubt, and there are many cases that serve as examples for a lack of evidence in constructive possession charges. 

In one case, a man was driving his sister's car. The defendant was stopped by police and cocaine was found in the glove box. Despite being in the car with the drugs at the time they were found, the man was not found to be in constructive possession of the drugs. The state could not prove that he had knowledge of the drugs, their illegal nature, and that the man had control over the substances. 

Another case involved a man whose identification card was found in a vehicle containing marijuana. Proximity of the defendant's identification card to the drugs was not enough evidence to establish constructive possession. Also, in that case, the defendant was not found to be the owner of the vehicle. 

Potential defense options for constructive possession

If you or someone you know is facing constructive possession charges, there are many possible defenses. Your attorney can help establish whether you actually had knowledge of the drugs found. They might ask whether a vehicle or home where drugs were found belonged to you or someone else. If you borrowed a vehicle or were a guest at someone else's home, it may be possible to show that you were not aware of illegal substances on the premises. 

Your attorney may try to show that prosecutors cannot prove you know the substances found were illegal. They may also try to show that you did not have control of the drugs or access to them. For example, if the drugs were found in a locker and you do not have the key, control is not apparent. 

Contact an experienced attorney

Finding an attorney that understands constructive possession is crucial to building your defense. As a former state prosecutor and former county deputy sheriff, I understand the local court system. Contact me anytime to discuss your case.

About the Author

Larry Avallone

Larry Avallone is a Volusia County Florida based Board Certified Criminal Trial Attorney. He has been a Deputy Sheriff and a State Prosecutor and he exclusively practices criminal defense law.


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